In the new edition, which includes a foreword by Kevin Noonan of http://www.patentdocs.org (who is a friendly and an honest critic of my arguments even now), I elaborate on the Myriad case, which began after the first edition was published, and offered an exciting opportunity to track the relevance of public philosophical debate. The case surprised many in the patent bar, but anyone who pays attention to the logical arguments about the nature of “isolated” genes vs. those that are part of the genome would not be surprised. The unanimous Supreme Court decision was entirely logical, the legal landscape has been made more logical and predictable, and in this edition I added some materials proposing a general ontology of discovery and invention that helps to make sense of the new state of the law for applicability in the future.

I’ll have a lot more to say in the near future on patent reform in general which I think is at a critical crossroads, but in the meantime, and once again, thank you Brian Leiter, for keeping my name in the blogosphere, and helping to draw attention to my work. Keep it up and I may feel obliged to give you a cut of the royalties.

It concludes: “Well-written, reasonably effectively-presented, given the complexity of its subject matters, and expertly-argued by a scholar, who focuses on interdisciplinary ethical, legal, philosophical, and technological issues, this book may presume that readers possess some foundational knowledge of ethics, intellectual property laws, philosophy, and/or new technologies, as well as the author’s previous writings. It is highly recommended for upper level university students, researchers, scholars, scientists, and some professionals. This ambitious, original, and provocative, interdisciplinary publication, presenting a controversial approach to the current status quo in the nanoparticle world, belongs in research-oriented library collections found mostly in academic and special libraries.”

Recently, I was banned from IPWatchdog.com by its founder, Gene Quinn. At one time, I had posted there as a guest contributor on the issue of gene patents, but it became clear quickly that any amount of questioning or imposing even some logical limits on the reach of patent law was blasphemy to members of the IP-industrial complex. A careful scan of the materials there over time shows that anyone questioning the unbridled patentability of basically anything becomes a pariah. The entire debate for me, over the past few years, has illustrated most depressingly for me that the law has no room for logic, and expedience, profits, and power are what win the day. Let’s look carefully at the current state of the debate, and why the law in this instance contradicts the most basic laws of logic.

This is one of the three basic laws of thought known since the Greeks, and understood by all rational people to be necessarily agreed upon for reasoned discourse. A=A, in all cases, without exception. As I pointed out in the ongoing discussion about the BRCA1 and 2 patents, this is a logical law disregarded in the courts through cases that allow for the patenting of “isolated” chemicals, molecules, or elements. The response of the patent professionals is “X” becomes somehow “different” when it is isolated from some substrate or complex. This is the reasoning used by those who claim that Priestley’s isolation of O2 from Mercuric Oxide would result not just in a patent-eligible process for making pure O2 (which I did not contest) but also result in a patent-eligible product, namely: O2. So, let’s get this straight. O2 molecules produced through photosynthesis, as opposed to those produced by the Priestley process, or perhaps the the process of electrolysis from water, are not identical. This clearly violates the law of identity, because morphologically, although completely the same, O2 does not equal O2 if and only if the process for creating them is not identical. But this violates at least two other ontological principles: sparsity, and the distinction between product and process. It unnecessarily multiplies entities (so that O2 created by electrolysis is ontologically distinct from O2 created by photosynthesis, etc.) based upon the method of creation of the particular molecules.

I posed some counterexamples that show why this chain of reasoning fails. Consider, for instance, a person created through IVF. The person remains a product of nature despite his or her method of creation. None of the attributes of that person, excepting his or her existence itself, differ from the attributes of any other person. The intention of the creator of something to create something does not itself make the object an artifact. Rather, the intention must extend to the particular form. A genetically-engineered creature, by which a specific intention to alter the natural state of the creature created is expressed, counts for creating a non-natural thing. O2 created by electrolysis has no new form, and human intention is not responsible for its form, only its origin. Believing that this is enough to create an artificial thing, worthy of the status “invention” means believing that IVF is enough to create an “artificial” human.

Let’s take an example more similar to DNA and genes, and one I use in my book: a string of letters. the following string contains a sub-string:

ddkkghfooocnnnmadhatterkkkggoodiiannnd

Taking seriously the claims of the patent-professionals who support gene patenting, “madhatter” as it appears in the string is qualitatively different than “madhatter” as an “isolated” string. Assigning a variable to the string X=madhatter , they seriously argue that X does not equal X once isolated. It becomes somehow “different.” This is really wonderland.

Too far upstream

This is a critical issue for new technologies, specifically in nanotech, where molecules themselves are often parts of the essential building blocks of technologies, and where the threat of patenting too far “upstream” such as in gene patents, may hinder an entire industry. The law has no bright line distinctions to draw in measuring what is too far “upstream” and ignores, once again, logic. The limitation is often cited as being a limit on patenting “abstract ideas,” but this is a pleonasm. As I have argued, all ideas are abstract. The only relevant inquiry is: is it a product of nature, or is it a new, man-made artifact or process.

Which law rules?
Unfortunately, the courts and attorneys who fail to abide by basic principles of logic, or choose to ignore them when they do not suit their needs, will win unless reined in by the Supreme Court, or by legislatures. There is no separate logic for the law, or for any particular field. We cannot as a civilization engage in reasoned progress unless we agree on certain axioms, including the laws of logic. But more and more, it seems that raw power, expedience, and money win over reason, and that policy is shaped to suit the powerful, logic be damned. But still, I hope.

I take great pains in Innovation and Nanotechnology to point out that the sci-fi vision of molecular nanotechnology is a long ways off. While the utopian visions of Drexler and Kurzweil are, I believe, ultimately achievable, MNT may never be achieved in my lifetime. But this is not keeping serious researchers from attempting to achieve it, nor keeping ethicists from considering its effects. I point to the Smalley-Drexler debate about the feasibility of MNT, and an excellent summary of (at least) six physical challenges to achieving MNT. I remain skeptical about the optimistic timeline offered by some, as I have been disappointed in the slow-pace the relatively simple task of colonizing other planets has taken. But extrapolating about the past in the speed and achievements of another nanodomain’s accomplishments, namely the considerable miniaturization of computing technologies, gives me hope about the ultimate likely achievement of MNT, perhaps in the next hundred years.

So my musings and concerns about the role of IP in potentially hindering the full achievements of MNT may seem premature. But if researchers are trying to achieve the technology, and futurists, policy-makers, and others are preparing in numerous ways for its eventuality, then I believe it’s appropriate to face the problem of IP now. Moreover, and as I argue in the book, we are in a transitional stage, with the advent of cheap 3D printing, where IP may already pose a hindrance to its commercially revolutionary potentials.
Nanowares, the broader term I use to encompass all distributed manufacturing technologies, are already here. They are already disruptive and liberating to our creative abilities. Entrepreneurs with good ideas can begin manufacturing (albeit limited forms of) new, valuable, and even necessary products. New markets for the types (as opposed to tokens) have already been created, as pointed out in this blog. The IP issues I am talking about are already a concern, and have already driven many in this nascent community to adopt and work under open source schemes, and to avoid litigation and lawyers, and profit outside of the IP regime. True MNT may be a long, long way off, or it may be around the corner, but nanowares are already here, and the time to come to grips with IP’s stifling effects on the future of innovation is now.

Graphene is a form of carbon that promises to be extremely useful in nanowares, being highly conductive, extremely flexible, and very strong. It is an atom-thick sheet of carbon, essentially the buckminsterfullerene molecule made two-dimensional.

As I wrote about in my book, the discoverers of “Buckyballs” did not patent the product, the molecule itself, although many of my friends in the patent community would urge them to do so. Like molecular oxygen, or strings of nucleotides found in nature, modern patent lawyers argue that anything under the sun, even natural products when synthesized, although morphologically identical, are somehow magically patentable. What a bonanza for the lawyers it has been to interpret patent this way, as the courts have now for nearly a century. But what a hindrance to science and innovation if scientific discoveries like buckyballs, carbon nanotubes and graphene were all patented.

Because Kroto, Smalley, and Curl chose not to patent buckyballs, and Andre Geim, who discovered graphene never patented it either, the landscape for innovation in these materials is wide open (they all, incidentally, settled for mere Nobel prizes). The dream of readily-available nanoware production is partly demonstrated by a graphic demonstration recently in which graphene was made from girl scout cookies

Because there is no monopoly on the product, innovators are free to experiment with variety of ways to make the product, hopefully with ever-increasing efficiency, all without the necessity to pay costly license fees to a patent holder. Unfortunately the closely-related field of carbon nanotubes is now a prime example of a patent thicket, with 257 competing patents all vying for some part of the material. Don’t expect the girl scouts to start experimenting or innovating in that material until those patents lapse.

I just ran into this wonderful tool that bridges the gap between toys and nanowares. It is a fully-functional lego-based MakerBot.

It looks like it would be a wonderful way to demonstrate the joy of home-fabrication and the DIY mentality, while enjoying a weekend of Legos with the (older) kids.

So why do tools and toys like this promise to make IP go the way of the Dodo? Simply: when we can send each other digital files of our new creations, build and improve on them, and fabricate them at home for virtually nothing, users will reject the notion that they need IP protection, and will refuse to pay. They are already realizing the virtuous cycle that derives from sharing, and the frictionless innovative improvements we can make in our everyday store of artifacts, and even that we can profit through selling pre-made versions of objects without IP (like Ardunio does),

even where the designs are freely available as open source.

Creativity is a service, and we can pay for it justly without a governmentally-sponsored monopoly requiring it. Now I’m going to start getting some Legos and when my daughter is old enough, we’re going to build something marvelous!

Those who object that the open source path to innovation is just giving away the store, and unprofitable, ignore the centuries of success and profitability of shunning expensive and unwieldy Intellectual Property schemes. The early car industry, as I and numerous others point out, adopted a “patent pool” early on to avoid unnecessary and costly (though profitable to lawyers) litigation. This patent pool essentially meant that all car companies in the pool would “donate” their IP to each other, rather than jealously protect it, so that innovation rather than patent “thickets” prevailed. Learning their lesson from innovation-hindering disputes in the early steam industry, and watching similar disputes slow innovation in aeronautics, the auto manufacturers who joined a patent pool agreed that profits could be made through innovating, building quality goods, and rewards could be reaped by all through a virtuous (and profitable) circle of sharing techniques rather than employing lawyers to guard them.

Patent pools are not quite Open Source, but they are similar. Open Source short-circuits IP by revealing the technology or technique without seeking first any IP protection. Patent pools get the protection, then reveal and share it with an agreement not to litigate. But in a sense, the early patent pool in automotive innovation serves as a model for current attempts to innovate and profit through open source manufacturing.

This week’s example is Oomlout which makes open source robot kits, and instructs others (for free) about their methodology.